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The fishing right guaranteed by the fishing clause of the Stevens Treaties between the United States and the Indians of Western Washington should be considered a trinity of rights: a right of access, a right of equitable apportionment, and a habitat right. While seven different Supreme Court decisions and scores of lower court decisions examine the contours of the first two elements of the fishing right, the contours of the final element of the right remain unsettled. No appeals court has ruled on whether there, is an implied habitat right. While some trial courts have skirted the issue, only one has addressed it directly, with the opinion vacated on appeal. This Comment examines the proposed implied habitat right and explains why courts should recognize it. One of the most significant and long-simmering legal disputes in Western Washington entered a new phase in January 2001, when local Indian tribes filed a "Request for Determination"' in the context of United States v. Washington The Request for Determination is based on the fishing clause of the Stevens Treaties between the United States and the "fishing Indians" of what is now Western Washington? It asks the court to impose a duty on *J.D., 2002, University of Washington; M.S., 1992, Columbia School of Journalism; B.A., 1988, Middlebury College. Currently, the author is an attorney with the Swinomish Tribal Community, near La Conner, Washington. First place winner, 2001-02 American Indian Law Review writing competition. 1. Request for Determination, United States v. Washington, Civ. No. C70-9213 (W.D. Wash. 2001). 2. United States v. Washington spawned the original Judge Boldt decision allocating up to half the harvestable salmon to the Indians. See United States v. Washington, 384 F. Supp. 312, 343 (W.D. Wash. 1974), affd, 520 F.2d 676, 689 (9th Cir. 1975). In subsequent rounds of United States v. Washington, the courts have allocated half the shellfish and any other marine species with commercial value to the Indians. United States v. Washington, 157 F.3d 630, 651 (9th Cir. 1998). The tribes have also litigated disputes among themselves about the boundaries of their respective usual and accustomed fishing places in the context of United States v. Washington and progeny. See, e.g., United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000). 3. The term "fishing Indians" refers to any of the Indians who lived from the Pacific Published by University of Oklahoma College of Law Digital Commons, 2002 282 AMERICAN INDIAN LAW REVIEW [Vol. 27 the State of Washington to construct and maintain culverts under state highways so that salmon and other fish have unobstructed passage between their spawning grounds and the sea.' According to three different studies by the State of Washington, improperly maintained culverts prevent anadromous fish5 from accessing over 400,000 square meters of potentially productive salmonid spawning habitat.6 If the culverts were fixed, salmon would regain access to this habitat, producing approximately 200,000 more adults per year.! This Comment argues that courts should recognize the habitat right implicit in the tribes' Request for Determination. Without judicial recognition of a habitat right, anadromous fish populations will continue to perish and the treaty fishing right will become even emptier than it already is.' In today's world of polluted, riprapped,9 channelized, unvegetated, and otherwise degraded streams, the Indians' fishing right is becoming an empty 'promise. " ' If the tribes had a habitat right, they could use it to make the fishing right meaningful, demanding that the state take simple, cost-effective steps to protect fish habitat, such as fixing the culverts. Coast to the Cascade foothills, subsisting primarily on fish and seafood when they signed the Stevens Treaties in 1855. See, e.g., Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, 30 ENVTL. L. 279, 287 (2000). 4. See Request for Determination, supra note I, at 1-2. 5. Anadromous fish spawn in freshwater, emigrate to the sea during the spring floods, spend their adult years in the ocean, then return to their natal streams to spawn. Salmon and certain species of trout and char are anadromous. See generally JOHN R. MAGNUSON (CHAIR), NAT'L RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 7-8 (1996). 6. The three reports are: WASH. STATE DEP'T OF TRANSP. & WASH. STATE DEP'r OF FISH & WILDLIFE, FISH PASSAGE PROGRAM PROGRESS PERFORMANCE REPORT FOR BIENNIUM 1991-1993; WASH. STATE DEPT OF TRANSP. & WASH. STATE DEP'T OF FISH & WILDLIFE, FISH PASSAGE PROGRAM PROGRESS PERFORMANCE REPORT FOR BIENNIUM 19931995; and WASH. STATE DEP'T OF TRANS. & WASH. STATE DEP'T OF FISH & WILDLIFE, FISH PASSAGE PROGRAM DEPARTMENT OF TRANSPORTATION FINAL REPORT, 1997. 7. Id. 8. See, e.g., Mason B. Bryant & Fred H. Everest, Management Condition of Watersheds in Southeast Alaska: The Persistence of Anadromous Salmon, 72 NORTHWEST SCI. 249-67 (1998) (discussing the importance of unadulterated habitat for salmon production). 9. "Rip-Rap" refers to a layer of boulders or other hard material laid on an embankment to protect it from erosion. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1960 (1981). 10. For example, tribal harvests in Western Washington declined from over 5,000,000 anadromous fish in 1986 to about 500,000 fish in 1999. See Request for Determination,

Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties